BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No: SH-93143
Plaintiff, ) CITATION NO: M8502-061-93
)
SHERMS THUNDERBIRD )
Defendant ) OPINION AND ORDER
A hearing was convened in Medford, Oregon on July 25, 1994
before Philip A. Mongrain, Referee. Oregon Occupational Safety
& Health Division (OR-OSHA) was represented by Assistant
Attorney General Armonica Gilford. The employer was not
represented by a properly designated person so the hearing was
postponed in order to allow the proper designation to take
place. After Frank Bartyzal was appointed as the employer's
representative the hearing was reconvened in Medford on October
31. OR-OSHA was again represented by Ms. Gilford and the
employer was represented by Mr. Bartyzal. The hearing was
reported by Joe-Ann Johnson of Business Support Services and was
closed at its conclusion.
Exhibits 1-12 submitted by Ms. Gilford on May 12, 1994 were
admitted in evidence. Also admitted in evidence were: Exhibit
13, OAR 437, Division 2, General Occupational Safety & Health
Rules; Exhibit 14, a "To Whom It May Concern" letter from Frank
Bartyzal of Sherm's Thunderbird Markets; Exhibit 15, a "MACNINE
SPECIFIC LOCKOUT TAGOUT PROCEDURE" pertaining to a produce
bailer; Exhibits A-G, a series of photographs.
ISSUE
Whether the employer violated safety standards pertaining to
documentation of specific procedures for shutting down,
isolating, blocking and securing machines to control hazardous
energy, as alleged in Item 1-1 of the citation issued by OR-OSHA
on March 29, 1993. Five other alleged violations were not
challenged.
FINDINGS OF FACT
On March 8, 1993 Safety Compliance Officer Charles McFarland
was conducting a planned inspection on the employer's premises
(Charles McFarland's testimony; Exhibits 2-5). During the
inspection Mr. McFarland observed a bailer used to compress
cardboard boxes and paper (Charles McFarland's testimony). The
bailer has at least two energy sources but there was no specific
written procedure attached to the machine clearly advising how
to secure the energy sources before working on it (Charles
McFarland's testimony; Exhibits 2-4). Based on that information
and the small amount of time he determined was spent working on
the bailer Mr. McFarland concluded that the failure to provide
the written procedure represented a low probability of a serious
injury caused by a hydraulics failure that would allow the top
plate of the bailer to come down on a person (Charles
McFarland's testimony; Exhibit 4, page 1). Thereafter, on March
29, 1993 a citation was issued citing the employer for six
safety standards violations including a violation of safety
standards pertaining to specific procedures for controlling
hazardous energy on the bailer (Exhibit 1, page 3).
ULTIMATE FINDING OF FACT
The employer did not provide at the bailer in question a
written procedure for controlling hazardous energy of the bailer.
OPINION
29 CFR 1910.147(c)(4)(ii)(B), adopted by reference by OAR
437-02-140, provides that procedures for the control of
potentially hazardous energy in machines or equipment:

"...shall clearly and specifically outline the
scope, purpose, authorization, rules, and techniques to be
utilized for the purpose of hazardous energy, and the means to
enforce compliance including, but not limited to the following:
"...
" (B) Specific procedural steps for shutting down, isolating,
blocking and securing machines or equipment to control hazardous
energy..."

Mr. McFarland stated that there was no specific written
procedure for the bailer in question, and his conversation with
Mr. Bartyzal on March 8 (Exhibit 4, page 1) appears to confirm
Mr. McFarland's testimony. Mr. Bartyzal introduced evidence of
a machine specific procedure for a produce bailer (Exhibit 15),
but that is apparently a different machine than the one for
which the employer was cited. Although 29 CFR 1910.147(c)(4)(i)
provides that a required procedure need not be documented in
certain situations such as a machine with no potential for
stored energy after shutdown or a machine that has a single
energy source that can readily be isolated, I am not persuaded
by the evidence that any of those exceptions applies here.
Therefore, the violation has been proved.
OAR 437-01-145 provides for a penalty schedule based on the
probability of an injury and the severity of any injury that
occurs. Mr. McFarland testified that the small number of people
working on the cardboard/paper bailer would create a low
probability of an injury, but if an injury occurred it could
result in serious physical harm. There is no evidence to the
contrary. The regulation establishes a $300.00 penalty for such
a circumstance, which is the penalty that was imposed.
CONCLUSION OF LAW
The violation alleged in Item 1-1 of the citation has been
proved and the propriety of the proposed penalty has been
established.
ORDER
IT IS HEREBY ORDERED that Citation No. M8502-061-93 is affirmed.
NOTICE TO ALL PARTIES: If you are dissatisfied with the Order
you may, not later than SIXTY (60) days after the mailing date
on this Order, request a review by the Court of Appeals, Third
Floor, Justice Building, Salem, Oregon 97310, pursuant to ORS
183.480, 183.482. A request for review shall be mailed to the
Court of Appeals at the above address with copies of such
request mailed to all other parties to this proceeding. Failure
to mail such a request for a review within SIXTY (60) days after
the mailing date of the Order will result in LOSS OF RIGHT TO
APPEAL FROM THIS ORDER.
Entered at Medford, Oregon December 21, 1994
WORKERS' COMPENSATION BOARD
Philip A. Mongrain, Referee